Citation Nr: 1015885
Decision Date: 04/30/10 Archive Date: 05/06/10
DOCKET NO. 05-18 984 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to an increased evaluation for sarcoidosis,
currently evaluated at 10 percent.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Young, Counsel
INTRODUCTION
The Veteran reportedly had active military duty from June
1978 to August 1981.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 2004 rating decision issued
by the Department of Veterans Affairs (VA) Regional Office
(RO) in St. Petersburg, Florida. Jurisdiction over this case
was subsequently transferred to the Montgomery, Alabama RO.
FINDINGS OF FACT
Sarcoidosis is not productive of pulmonary involvement with
persistent symptoms requiring chronic low dose or
intermittent corticosteroids, or FEV-1 of 56 to 70 percent or
FEV-1/FVC of 56 to 70 percent, or DLCO (SB) of 56 to 65
percent.
CONCLUSION OF LAW
The schedular criteria for an evaluation in excess of 10
percent for sarcoidosis have not been met. 38 U.S.C.A. §
1155 (West 2002); 38 C.F.R. §§ 4.7, 4.97 Diagnostic Codes
6600, 6846 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
Under the Veterans Claims Assistance Act (VCAA), when VA
receives a complete or substantially complete application for
benefits, it must notify the claimant of the information and
evidence not of record that is necessary to substantiate a
claim, which information and evidence VA will obtain, and
which information and evidence the claimant is expected to
provide. 38 C.F.R. § 3.159 (2009). Such notice must
indicate that a disability rating and an effective date for
the award of benefits will be assigned if there is a
favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159,
3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-
21 (2004) (Pelegrini II); see Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006).
Prior to initial adjudication of the Veteran's claim, a
letter dated in July 2004, fully satisfied the duty to notify
provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. §
3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). The Veteran was notified of the evidence that was
needed to substantiate his claim; what information and
evidence that VA will seek to provide and what information
and evidence the Veteran was expected to provide, and that VA
would assist him in obtaining evidence, but that it was
ultimately his responsibility to provide VA with any evidence
pertaining to his claim. See Pelegrini. In addition, in
October 2008 the Veteran received correspondence of how VA
determines the disability rating.
Notwithstanding the foregoing, it is noted that, on September
4, 2009, the Federal Circuit vacated and remanded Vazquez-
Flores v. Peake, 22 Vet. App. 37 (2008), and Schultz v.
Peake, No. 03-1235, 2008 WL 2129773, at 5 (Vet. App. Mar. 7,
2008). Specifically, the Federal Circuit concluded that "the
notice described in 38 U.S.C. § 5103(a) need not be Veteran
specific." In addition, the Federal Circuit determined that
"while a Veteran's 'daily life' evidence might in some cases
lead to evidence of impairment in earning capacity, the
statutory scheme does not require such evidence for proper
claim adjudication." Thus, the Federal Circuit held,
"insofar as the notice described by the Veterans Court in
Vazquez-Flores requires the VA to notify a Veteran of
alternative diagnostic codes or potential 'daily life'
evidence, we vacate the judgments."
VA's duty to notify may not be "satisfied by various post-
decisional communications from which a claimant might have
been able to infer what evidence the VA found lacking in the
claimant's presentation." However, such notice errors may
be cured by issuance of a fully compliant notice, followed by
readjudication of the claim. See Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006) (where notice was not provided
prior to the RO's initial adjudication, this timing problem
can be cured by the Board remanding for the issuance of a
VCAA notice followed by readjudication of the claim by the
RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376
(2006) (the issuance of a fully compliant VCAA notification
followed by readjudication of the claim, such as an SOC or
SSOC, is sufficient to cure a timing defect). Here, the RO
again considered the claim following the October 2008 notice
letter and issued a supplemental statement of the case in May
2009.
The Veteran's service treatment records and all VA medical
records have been obtained and associated with the claims
folder. The Veteran was also examined by VA during the
pendency of this appeal.
Based on his contentions as well as the communications
provided to him by VA, it is reasonable to expect that the
Veteran understands what is needed to prevail. See Simmons
v. Nicholson, 487 F. 3d 892 (2007); see also Sanders v.
Nicholson, 487 F. 3d 881 (2007). Accordingly, the Board
finds that the Veteran is not prejudiced by moving forward
with a decision on the merits at this time, and that VA has
complied with the procedural requirements of 38 U.S.C.A. §§
5104, 7105(d), and 38 C.F.R. § 3.103(b), as well as the
holdings in Dingess/Hartman, 19 Vet. App. 473 (2006).
II. Increased Evaluation
Disability evaluations are determined by the application of a
schedule of ratings which is based, as far as can practically
be determined, on the average impairment of earning capacity.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). Each
service-connected disability is rated on the basis of
specific criteria identified by diagnostic codes (DCs). 38
C.F.R. § 4.27. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability more closely approximates the
criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7. Generally, the
degrees of disability specified are considered adequate to
compensate for loss of time from work proportionate to the
severity of the disability. 38 C.F.R. § 4.1.
The Veteran's entire history is to be considered when making
a disability determination. See generally 38 C.F.R. § 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an
increase in the level of a service-connected disability is at
issue the primary concern is the present level of disability.
Francisco v. Brown, 7 Vet. App. 55 (1994). However, the
Court has held that in determining the present level of a
disability for any increased evaluation claim, the Board must
consider the application of staged ratings. See Hart v.
Mansfield, 21 Vet. App. 505 (2007).
The Veteran is service connected for sarcoidosis with a 10
percent disability evaluation assigned under 38 C.F.R.
§ 4.97, Diagnostic Codes (DCs) 6846, 6600. He contends that
symptoms of his disability have increased in severity and a
higher disability evaluation is warranted.
Under 38 C.F.R. § 4.97, DC 6846 (sarcoidosis) the active
disease or residuals are to be rated as chronic bronchitis
(DC 6600) and extra-pulmonary involvement under specific body
system involved. Where there is pulmonary involvement with
persistent symptoms requiring chronic low dose (maintenance)
or intermittent corticosteroids a 30 percent evaluation is
assigned. Pulmonary involvement requiring systemic high dose
(therapeutic) corticosteroids for control warrants a 60
percent evaluation. A 100 percent evaluation is assigned for
cor pulmonale, or cardiac involvement with congestive heart
failure, or, progressive pulmonary disease with fever, night
sweats, and weight loss despite treatment. See Id.
Since sarcoidosis may be evaluated as chronic bronchitis, DC
6600 is also relevant to evaluating the Veteran's disability.
Under 38 C.F.R. § 4.97, DC 6600 (chronic bronchitis) a 10
percent evaluation is assigned for forced expiratory volume
in one second (FEV-1) of 71 to 80 percent predicted value,
or, the ratio of FEV-1 to forced vital capacity (FVC) of 71
to 80 percent or, diffusion capacity of the lung for carbon
monoxide by the single breath method (DLCO(SB)) 66 to 80
percent predicted. A 30 percent evaluation is assigned for
FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70
percent, or DLCO (SB) 56 to 65 percent predicted. A 60
percent evaluation is assigned for FEV-1 of 40 to 55 percent
predicted, or FEV-1/FVC of 40 to 55 percent, or, DLCO (SB) of
40 to 55 percent predicted, or, maximum oxygen consumption of
15 to 20 ml/kg in (with cardio respiratory limit). A 100
percent evaluation is assigned for FEV-1 less than 40 percent
of predicted value, or, FEV-1/FVC less than 40 percent, or,
DLCO (SB) less than 40 percent predicted, or, maximum
exercise capacity less than 15 ml/kg in oxygen consumption
(wit cardiac or respiratory limitation), or, cor pulmonale
(right heart failure) or, right ventricular hypertrophy, or,
pulmonary hypertension (shown by Echo or cardiac
catheterization), or, episode(s) of acute respiratory
failure, or, requires outpatient oxygen therapy. See Id.
VA outpatient treatment records dated from 2003 to 2008
reflect occasional treatment for pulmonary complaints and
prescriptions for albuterol. On most occasions the lungs
were clear and/or normal. On VA examination in September
2002, the lungs were clear and x-ray findings were consistent
with sarcoidosis. On pulmonary function tests, FVC was 93
percent and FEV1 87 percent of that predicted post-
bronchodilator. DLCO(SB) was 101 percent of that predicted.
Findings were consistent with a mild obstructive lung defect.
A March 2005 VA Medical Center (MC) report of the Veteran's
pulmonary function test (PFT) results reveal mild restrictive
disease. It also revealed a mild small airways obstructive
defect, which interpretation was limited due to an erratic
flow volume loop, low FEF50 [forced expiratory flow rate],
low peak flow, and low MVV [maximum ventilatory volume]
indicating poor effort. Diffusion capacity was normal when
adjusted for alveolar volume. Change with bronchodilator
could not be assessed due the Veteran's poor effort.
A VA examination was conducted in March 2005. At that time
the Veteran reported that he had a history of shortness of
breath along with general muscle spasms since the early
1980's. He reported that his breathing has gradually gotten
worse over the years with increasing pain and cramping of his
chest muscles. The examiner noted that the Veteran has a
history of smoking cigarettes, one to two packs per day until
about three years ago; and now he smokes about two to three
cigarettes per day. The examiner noted further that the
Veteran is not on any specific medications for his
sarcoidosis or other lung condition. On physical
examination, his respiration was 18. He had no generalized
lymph adenopathy. His chest was symmetrical and lung
auscultation revealed clear breath sounds with occasional
mild wheezing on extreme expiration. His heart was regular,
there was no murmur and heart sounds were normal. There was
no evidence of congestive heart failure and no history of
pulmonary hypertension or cor pulmonale. Pulmonary function
test (PFT) revealed evidence of mild restrictive and
obstructive disease. Chest x-ray revealed bilateral hilar
and mediastinal adenopathy, but without any evidence of
abnormal changes in his lungs or heart. The diagnosis was
mild sarcoidosis, currently stable without any specific
treatment.
In September 2007 the Veteran had a VA examination due to his
claim that his service-connected disability had worsened. At
the examination he reported that he uses an albuterol
inhaler, two puffs, twice a day. He also uses an albuterol
nebulizer approximately three times a week. He stated that
his breathing condition has gotten worse over the past
several years; but, he is still able to walk up to a mile a
day without difficulty. He stated that he is currently
unemployed due to a knee injury and he stated that there are
no affects on his activities of daily living. He stated
further that he has a cough, which is mildly productive of
approximately a teaspoon of white sputum every other day. He
denied any hemoptysis or anorexia. He stated that he has
dyspnea on exertion, but he is able to walk at least a mile.
He denied any history of asthma. He also denied any periods
of incapacitation in regards to his sarcoidosis in the past
year.
On objective examination there was symmetrical expansion of
the lungs, clear breath sounds, occasional mild expiratory
wheezing, and no rales or rhonchi. The Veteran's heart rate
and rhythm was regular. There were no murmurs, rubs, or
gallops. There was no evidence of left or right heart
failure. The Veteran was accorded a PFT, but due to less
than maximal effort exhibited by the Veteran, the results
were not reproducible. It was noted that the Veteran was
unable to complete a test satisfactory for interpretation.
The results were not reproducible and the Veteran had
problems responding to prompts. The technician performing
the test noted that the Veteran expressed that he was "too
sick to perform the test." It was concluded that
obstructive disease did not appear to be present. It was
noted that the technician was unable to assess for
restrictive disease since the test did not meet ATS [American
Thoracic Society] criteria for interpretation. X-ray
findings show persistent but slowly resolving bilateral hilar
and mediastinal adenopathy suggesting sarcoidosis. The
examiner concluded with an assessment of sarcoidosis,
currently stable, stable chest radiograph, less than maximal
effort exhibited on PFTs and chronic obstructive pulmonary
disease (COPD), currently stable. The examiner opined that
the Veteran had sarcoidosis and COPD, and continues to smoke.
He commented that it would be mere speculation on his part to
try and identify which pulmonary condition is related to the
PFT findings.
Considering the evidence of record the Board finds that an
evaluation in excess of the 10 percent currently assigned for
the service-connected sarcoidosis is not warranted. In order
to warrant the next higher evaluation of 30 percent under DC
6846, the Veteran's respiratory disability must be productive
of pulmonary involvement with persistent symptoms requiring
chronic low dose or intermittent corticosteroids. The
evidence does not show that the Veteran requires
corticosteroids to treat symptoms associated with his
respiratory disability. When examined in March 2005 he
indicated that he was not on any specific medications for his
sarcoidosis or other lung disorder. In rendering the
diagnosis, the VA examiner confirmed that the Veteran had
mild sarcoidosis that was stable at that time without any
specific treatment. During the VA examination in September
2007, the Veteran reported that he uses an albuterol inhaler,
and an albuterol nebulizer. There was no mention of the use
of corticosteroids either on examination or in the outpatient
treatment records. Absent evidence that the Veteran's
respiratory disability requires corticosteroids an increased
evaluation in excess of the 10 percent currently assigned is
not warranted under 38 C.F.R. § 4.97, DC 6846.
The criteria for a higher evaluation under DC 6600 have also
not been met. In order to warrant the next higher evaluation
of 30 percent under DC 6600, the Veteran's respiratory
disability must be manifested by FEV-1 of 56 to 70 percent
predicted, or; FEV-1/FVC of 56 to 70 percent, or DLCO (SB) 56
to 65 percent predicted. The evidence shows that the Veteran
was accorded a PFT in September 2007 but he was unable to
complete a test satisfactory for interpretation. The Veteran
expressed that he was too sick to perform the test. The
results were not reproducible. Notwithstanding the
incomplete PFT the VA examiner in September 2007 acknowledged
that less than maximal effort was exhibited on PFT and
provided an assessment that the Veteran's sarcoidosis, chest
radiograph and COPD were stable. The pulmonary function
testing in 2002 was well within the limits provided for a 10
percent rating and there has been no showing that these
values have changed significantly. While it is unfortunate
that reliable testing could not be done, this appears to be
in a large part due to the Veteran's failure to cooperate and
this is not a basis for favorable action. Based on the
foregoing, an evaluation in excess of 10 percent for
sarcoidosis is not warranted.
The Veteran's symptoms have not been severe enough to warrant
a higher evaluation at any time since the effective date of
his award for sarcoidosis, so his evaluation cannot be
"staged" because 10 percent represents his maximum level of
disability throughout the appeals period. See Hart, supra.
Finally, the Board notes that there is no evidence of record
that the sarcoidosis causes marked interference with
employment (i.e., beyond that already contemplated in the
assigned evaluation), or necessitated any frequent periods of
hospitalization, such that application of the regular
schedular standards is rendered impracticable. In the
instant case, there is no evidentiary basis in the record for
a higher rating on an extraschedular basis as there is no
evidence that the Veteran is unable to secure or follow a
substantially gainful occupation solely as a result of his
sarcoidosis. On VA examination in September 2007 the Veteran
stated that he was unemployed due to a knee injury. He
denied any periods of incapacitation in regards to his
sarcoidosis in the past year. Hence the Board is not
required to remand this matter to the RO for the procedural
actions outlined in 38 C.F.R. § 3.321(b)(1) for assignment of
an extraschedular evaluation.
ORDER
Entitlement to an increased evaluation in excess of 10
percent for sarcoidosis is denied.
____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals